You Win Civil Rights Struggles By Making Good Arguments That Appeal to People's Morals
Trans activists may be blowing it by insisting their allies endorse extreme arguments
There’s a basic template for success of civil rights movements in the United States, from abolitionism on. Advocates and activists make a case that appeals to people’s moral intuitions about equality and fairness and treating people with dignity. Over time, that case changes minds, and eventually you get social change.
The abolitionists got the United States to confront slavery, and eventually convinced people like Abraham Lincoln that there was no path forward for a nation half-slave and half-free. The Black civil rights movement convinced the public that basic notions of equality and morality required the elimination of Jim Crow, public accommodations, voting rights, and fair housing laws, and moral and discourse norms that condemn open expressions of prejudice. Feminists convinced the public that women who sought to have careers ought to be able to do so, that contraception and divorce were important human rights, and that the law should take rape and domestic violence more seriously.
All of these social movements featured academics and radicals on their fringes, who espoused fringe theories. There were Black intellectuals arguing for rigid separation of the races, that white people were incarnations of the Devil, etc. Some radical feminists argued that gender equality was a mug’s game and that only some sort of revolution that smashed the patriarchy entirely and put women in charge could truly lead to a just society. These arguments are an understandable response by groups facing severe oppression; however, the people who led these social movements focused relentlessly on making a moral case. You never heard from Martin Luther King, Jr. that white people were devils, or from Gloria Steinem or Betty Friedan that there needed to be a violent revolution against men in power.
The most recent successful civil rights movement, for gay rights, made the same sort of moral case. Again, there were fringe voices who called for transgressing society’s moral norms (there was even a time when NAMBLA had some significant support from public intellectuals), but those voices were muffled while gay rights leaders focused relentlessly on the moral case for things like gay marriage and employment discrimination protections. We want to be treated as human beings, just like heterosexual people already are, was the basic message. And it succeeded, especially at the Supreme Court, which did a complete 180 from Bowers v. Hardwick (upholding prison sentences for men who have sex with men) to Obergefell and Bostock (recognizing a constitutional right to same sex marriage and employment discrimination protections for gay and trans people).
Trans people have the same moral case that these other groups have. They have historically suffered enormous amounts of discrimination. 40 years ago, transitioning often meant losing your job and having very few employment options (many trans women ended up in sex work). It meant people did not want to associate with you or rent you an apartment. It meant dealing with a medical establishment that, for the most part, did not understand your gender dysphoria and was unable to see you as you really were.
And, at bottom, being trans is irrelevant to just about everything. Just like there’s no justification for preferring a white bank teller to a Black bank teller, or a male pilot to a female pilot, there’s no justification for preferring a cis computer programmer to a trans computer programmer. So you have an absolutely ironclad case for legal protections for trans people- a historically oppressed group that faces discrimination based on their identity, which is irrelevant and does not justify unequal treatment.
And so far the trans movement is winning. As I pointed out, the movement won a huge legal victory in the Bostock case. The Equality Act, which contains protections for gender identity, is at most a few votes from passing the Senate and getting signed by President Biden. Many states have already adopted gender identity protections in their civil rights laws.
But there’s also a backlash. And this is what I worry about. Because in response to that backlash, when trans civil rights leaders need to be standing firm and saying this is about fundamental principles of equality and the equal moral worth of all persons, instead, they are making… really bad, radical arguments cooked up by academic theorists and which carry a great danger of turning off the American public. And worse than that, these activists are calling anyone who dissents from these wild academic arguments a transphobe, the same label they use for conservatives who don’t want trans people to exist at all.
If Martin Luther King had taken this approach, we might never have seen civil rights protections for Black people. If Gloria Steinem had taken this approach, women might still be excluded from much of the workforce and public life. If the Human Rights Campaign had taken this position, there might now be a constitutional amendment banning gay marriage. Insisting that everyone adopt radical arguments or be called a bigot isn’t a formula for strong alliances and progress towards equality. It is a formula for backlash and cloistered separatism and oppression.
Now I might defend what the trans activists were doing anyway if the arguments are better. But like a lot of academic theory on group oppression, the radical trans arguments rely a lot more on sophistry, circularity, and virtue signaling than they do on factual rigor and shared moral intuition.
For instance, many trans activists now take the position that “biological sex” doesn’t exist. As a matter of respect for their cause, I try not to use the term “biological sex”, saying “assigned sex at birth” instead. That seems harmless to me, and I actually do agree with activists that one problem with “biological sex” is that things that may cause a person to suffer dysphoria and seek transition may also be biological.
BUT that’s not the only thing many activists say about “biological sex”. They say it doesn’t exist because (1) intersex people exist and (2) trans people are “biologically” whatever gender they transition to. And those positions are crazy and play as crazy to the American public.
“Sex” is a biological concept. It isn’t merely descriptive of humans. Many species reproduce via sexual reproduction- i.e., there are two different types of gametes that combine to form a new organism. So we call the group that produces one type of gamete “male” and the type that produces the other “female”. It’s a binary, and humans have this binary too. We don’t reproduce by splitting ourselves into two new beings, like an amoeba does (“asexual” reproduction). We reproduce by uniting a sperm (male) and an egg (female). There’s a sexual binary.
The fact that there are intersex people does not change this, any more than the fact that an NFL game can occasionally end in a fluke tie means there isn’t a binary between winning and losing or that football coaches shouldn’t talk about the difference between winning and losing. Most intersex people are still very strongly associated with one sex and not the other anyway, although a fair number of them may turn out to be trans, in the sense that they contain the biological equipment of one sex but identify as the other.
And while there’s nothing wrong with the slogan “trans women are women”- they are- the notion that there’s no biological difference between a trans woman and a cis woman is crazy. To point out one obvious point, a cis woman can generally produce and carry a baby and a trans woman can’t. All sorts of sex characteristics produced naturally in a typical cis woman have to be mimicked by medicine or surgery in a trans woman.
The point is, when people hear activists and advocates say this, rather than just focusing on the fact that a trans woman ought to be treated like any other woman and should not face discrimination due to her gender identity, it sounds nuts. I realize there are obscure academic theories that can make arguments about how there’s no such thing as sex or gender at all or that what we call “sex” is actually just a social construction, but you go out into the world of ordinary people where there are men and women and boys and girls and plenty of people who think that trans people should be treated equally think that academic sex and gender theory is crazy.
Indeed, this sort of thing plays as especially crazy to two specific groups of people who are natural allies of trans people- gays and lesbians, and feminists. Cisgender gays and lesbians probably experience the gender binary as acutely as anyone. They have grown up their entire lives being policed for masculinity or femininity, been told that they should be excited about body parts associated with sex that they are not excited about, and not excited about other body parts that they are excited about, and face pressure to live up to gender roles of “masculine” and “feminine” even within their relationships. These people tend to be extremely supportive of trans people (hence the “LGBT” umbrella term) and can see natural analogies between their struggles and those of trans people, but they also tend to be hyper-aware about the binary. Andrew Sullivan, a gay writer who was a key voice in the marriage debate, faced some criticism for pointing out that a lot of the voices standing up against trans activist orthodoxy were gay people, but that’s not really surprising. If you try to tell Andrew Sullivan, who grew up being called a sissy and worse in homophobic England, and who experienced hypersexuality and hypermasculinity after going on testosterone treatments to manage his HIV, that there’s no such thing as biological sex, yeah, you are going to get some pushback.
Similarly, a lot of feminist theory is very much premised on the binary. While some of it has receded these days as a lot of American feminists try to be good allies of trans people, the feminists I studied when I first learned about feminism were extremely conscious of and developed their theories out of a gender binary. Theorists like Carol Gilligan, who argued for differences between girls and boys in their capacity to collaborate and make better decisions, or Mary Daly, who felt that only female leadership could save the planet, or Andrea Dworkin, Catherine MacKinnon, and a bunch of other theorists who dealt with issues of rape and pornography, and the sexual subjugation of women. While these feminists had varying views about issues of trans rights (a Mary Daly protege, Janice Raymond, wrote the TERF bible “The Transsexual Empire” attacking the whole notion of transsexuality, while my recollection is that Dworkin was fairly supportive of trans people), the point is that these theories were all based on the reality of sex and gender. To Dworkin, or MacKinnon, women were very much subjugated because they had ladyparts, and the patriarchy would oppress women to control and enslave them. There’s no way to reconcile that theory with Chase Strangio saying that there’s no such thing as a sex or gender binary.
I would point out that while trans activists were always going to run afoul of radical feminists (hence the TERF label), that doesn’t necessarily cost them support from liberal feminists, who are a much larger number of people. But some other things certainly might. For instance, activists routinely call on people who deal with subjects like “women’s health” to stop saying that. Trans men, after all, have uteruses and ovaries, and trans women don’t. So they demand incredibly klutzy language like “people with uteruses” or “people who can get pregnant”. So far, in the United States, feminists have for the most part gone along with this. But this is the type of thing that breeds resentment, because plenty of liberal, non-radical feminist theory is premised on a gender binary. For instance, most abortion rights advocacy is steeped in feminism. It isn’t simply that conservatives don’t respect privacy- it’s that they want to control women and control their bodies and reproductive system. The rejection of the gender binary threatens this whole line of thought- are conservatives really obsessed with uteruses or the people who carry them? Of course not- they want to control women and female sexuality. Restriction of abortions arises directly from the gender binary that trans activists are saying that it is transphobic to endorse.
Notably, while so far the LGBT-feminist alliance has held together in the United States, it is fraying in Britain. There are A LOT of TERF’s in Britain, and a lot of other people like JK Rowling who are not really TERF’s but are liberal feminists who believe in a gender binary. And while trans activists won the Bostock case here in the United States, they lost a huge case in Britain last year, when a British court imposed significant restrictions on the medical treatment of trans teens. The court found that the activists’ arguments were without factual support. Trendy academic theories do less well when they have to be presented to judges. In contrast, a very conservative judge like Neal Gorsuch can be persuaded by the moral and logical case for equal treatment of trans people.
Another example of how trans activists lose people is on the subject of sports. There is a very strong, common sense, practical reason for allowing trans girls to compete with cis girls in high school sports, and that is that there’s no real way to do sex testing or put trans girls on hormone treatments without seriously invading their privacy and interfering with their lives. And this doesn’t hurt anyone- OK, a trans girl will win sometime, but high school sports are amateur sports. There’s no prize money, and the principle of letting everyone participate is as strong as any competitive aspect.
However, that’s not what the activists are saying. Rather, they are making the incredible claim that trans girls have no advantages over cis girls. They based this, again, off some really dense and sophistic readings of the science data, popularized by academics.
Here’s the thing. First of all, no ordinary person believes that. Why? Because they go to their daughter’s high school track meet, and the girls are all running far slower and jumping and throwing shorter distances than the boys. I did plenty of public address announcing of track meets in my younger years, and it was very common for the last place finisher in the boys race to be faster than the first place finisher in the corresponding girls race. Some competitions, such as hurdles and the shot put, even feature easier implements for the girls- shorter hurdles and lighter weights.
But beyond that, professional and Olympic level sports sanctioning bodies don’t believe it. Yes, they allow trans women, but they require them to take time off and medically transition with hormones, in order to reduce the advantage. No women’s sports that actually feature serious prize or endorsement money allow someone to simply declare themselves a trans woman and compete. We understand this. No, Usain Bolt is not going to transition and win the women’s 100 meters gold medal. But if there were no requirement that the person medically transition and live as a trans woman, might the 75th best male sprinter announce a transition, win a gold medal and break Florence Griffith-Joyner’s world 100 meters record? Certainly sanctioning bodies are afraid of it. Indeed, this is one reason the IAAF, the track and field governing body, fought so hard to require Caster Semanya, an intersex woman with some male organs, to essentially do a medical transition to her assigned sex at birth with hormones if she wanted to compete in the middle distances. The IAAF won that fight- again, to win in court, you actually need evidence, and the IAAF had plenty of evidence that a person with far higher testosterone levels in her body had a significant advantage.
But, the trans activists say, doesn’t Michael Phelps have bodily advantages in his sport? Yes, but the difference is, he competes in open competition. The entire premise of women’s sports is that there’s a sex binary, and women cannot compete with men in open competition because at every level of competition except perhaps little children, females are weaker than directly comparable males. A female basketball player born abnormally tall but with the same testosterone levels and the same internal organs as any other female athlete has an analogous advantage to Michael Phelps’ advantage in swimming. But a person who actually falls on the other side of the sex binary in important respects is different than Michael Phelps- she has exactly the characteristics that the “women’s” category was created to exclude.
And again, the important thing is that people understand this. Martina Navratilova, who is now dismissed as a TERF, was a gay and trans rights pioneer who had a trans woman tennis coach, Renee Richards, who herself played women’s professional tennis. But Richards did it when she was older, after a relatively late-in-life transition. Richards was once asked about allowing someone in her teens or twenties to transition and start playing women’s tennis, and she said that would be a terrible idea. The trans girl would have a huge, unfair advantage.
Again, you don’t need to get into any of these weeds to oppose conservatives’ attempts to prevent trans girls from participating in high school sports. All you have to do is point out that it would be intrusive to be looking at high school girls’ private parts to police this, and destructive to require that high school age trans girls go on medication. It’s unfair to the trans girls themselves to tell them they can’t compete, and does little harm for them to compete because it is an amateur competition with no prize money. That’s a tightly constructed, excellent argument.
Instead, activists insist trans women have no advantages over cis women in sports. This costs them support. It costs them a lot of suburban parents who have daughters in sports. And it could eventually cost them the support of feminists. While American feminists (unlike their British counterparts) have to this point gone along with trans activists on the sports issue, they have done so precisely because there have only been a couple of isolated examples of masculine-looking trans girls winning competitions. The danger here is that the science really does show that if a lot of people start transitioning to win competitions, or if professional leagues are pressured to back down on hormone and waiting period requirements for trans women, that could start to change. All it would likely take is one prominent case, and trans activists could lose a lot of their feminist allies.
The bottom line is this. I am in the argument business. I have some idea of what arguments work and what arguments don’t work. Civil rights struggles use appeals to morality and equality because appeals to morality and equality persuade people. Academics sometimes use different sorts of arguments because they don’t have to persuade the masses. When a civil rights struggle adopts the language of radical academics, it can run into problems.
Trans people need all the allies they can get. There’s a significant danger of backlash. Calling everyone who supports their rights but disagrees with their theories about gender a “transphobe” is a very dangerous strategy.